Mandatory Mediation Upheld As High Court Dismisses Resistance Based On Predicted Failure

This article unpacks the scope of the courts’ power to compel reluctant parties to participate in court-annexed mediation. The big question is whether a party’s subjective belief that mediation would fail, or prior unsuccessful settlement attempts, can excuse them from participation.

The High Court clarified this in the judgment of Brondani v Brondani.

Compelling defendant to comply with mediation

The matter concerned a dispute arising from an alleged assault in December 2019.

The plaintiff claimed damages of just over R1m, while the defendant filed a counterclaim for over R2.5m, alleging that the plaintiff was the aggressor and caused serious injuries to the defendant’s throat and voice box.

The plaintiff brought an interlocutory application under Uniform Rule 41A, read with the directive introducing Mandatory Mediation in the Gauteng Division and the associated protocol, as amended.

The plaintiff sought an order compelling the defendant to comply with the mandatory provisions of the protocol, including filing an amplified Rule 41A notice, cooperating in the appointment of a mediator, and bearing the costs of the application.

The defendant opposed the application, stating that he did not agree to the matter being referred to mediation. He argued that mediation would be ineffective, would prolong litigation, and would increase costs for all parties.

He further contended that previous attempts to settle the dispute had all failed, and that mediation would be incapable of resolving the issues, particularly the question of who was at fault for the assault.

In his answering affidavit, the defendant reiterated these points, stating that he would not pay any compensation to the plaintiff, would not fund the mediation, and that the dispute fell outside the scope of what a mediator could determine, such as making findings regarding the cause of the assault or the instigator.

Can a defendant refuse to mediate

The court identified two key issues to be decided. First, whether the defendant’s Rule 41A notice could be classified as “irregular” under paragraph 4.7 of the mediation protocol, and second, whether the defendant’s refusal to mediate constituted a valid ground to avoid mediation.

Paragraph 4.7 provides that a notice is irregular if it simply rejects mediation without cogent reasons specific to the dispute. The court found that the defendant’s notice was not irregular, as it provided reasons tied to the specific circumstances, including the long history of the dispute and prior unsuccessful settlement attempts.

The central issue in the matter was whether the defendant’s refusal to participate could excuse him from court-annexed mediation.

The court emphasised that mediation is intended to be a structured, cost-effective, and less adversarial process for resolving disputes, while promoting cooperation and mutual understanding between the parties.

In this context, the court made it clear that a party cannot avoid mediation simply because they believe it will not work. Even a genuinely held view that mediation is unlikely to resolve the dispute is not a valid reason to refuse participation, as allowing this would defeat the purpose of the court-annexed mediation system.

Mediators serve as impartial facilitators

Mediators serve as impartial facilitators, guiding communication, reframing contentious issues, and assisting parties in identifying mutually acceptable solutions.

The court stressed that participation in mediation may only be excused in exceptional circumstances.

Notably however, neither the mediation protocol nor the court itself defined what constitutes “exceptional circumstances.” Instead, the court approached the issue indirectly by outlining circumstances that do not meet this threshold.

After considering the defendant’s arguments, the court found that a litigant’s subjective bona fide belief that mediation would fail, or the fact that previous settlement attempts had been unsuccessful, does not meet the threshold of exceptional circumstances despite extreme acrimony between the litigants.

These factors alone are insufficient to justify refusing participation in mediation.

Consequently, the court ordered that the defendant must cooperate in the appointment of a mediator and actively participate in the mediation process in accordance with Rule 41A and the mediation protocol.

Read the full judgment here

While the judgment firmly reinforces the mandatory nature of court-annexed mediation, it may be criticised for failing to provide substantive guidance on what constitutes “exceptional circumstances.”

In circumstances where the protocol itself offers no definition, more detailed direction from the court would have assisted litigants and practitioners in understanding the scope of this requirement.

Instead, the judgment addresses the concept indirectly, clarifying only which factors do not amount to exceptional circumstances, rather than setting out a clear, affirmative standard.

Mediation is a mandatory step

In conclusion, this case reaffirms that court-annexed mediation constitutes a mandatory procedural step with which litigants are obliged to comply.

The judgment makes it clear that a party’s reluctance to engage in mediation, a subjective belief that the process will be futile, or prior failed settlement attempts do not justify non-compliance, and litigants should accordingly proceed on the basis that participation in mediation is compulsory unless and until further judicial guidance is provided.

Mediation is becoming increasingly less of an option, with courts enforcing compliance more strictly. Litigants should therefore approach mediation seriously, not only because it is procedurally required, but because it offers a quicker, less adversarial and often more cost-effective way to resolve disputes, potentially avoiding the need for lengthy and expensive court proceedings altogether.